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Home > School of Law > Student > Law Review > Vol. > Iss. 2 (2026)

 

Western New England Law Review

Abstract

Are drug users second-class citizens under the Second Amendment? The Federal Government enacted the Gun Control Act in 1968 which imposed heaps of new regulations relating to private gun ownership, including enacting criminal statutes, namely 18 U. S. C. §922(g), which allows an individual to face charges if that individual is categorized under any of § 922(g)’s enumerated subsections. In 2010, the United States Supreme Court issued its landmark decision in District of Columbia vs. Heller, establishing the right of the people to own and possess firearms for self-defense, regardless of any association with “the militia” as described in the Second Amendment’s prefatory clause. Also in Heller, the majority created a two-part test for determining whether particular gun control legislation should survive Constitutional muster. First, the law in question cannot violate the Second Amendment’s plain text. Second, if the law does not, the Government must prove that the legislation is consistent with the United States’ historical tradition of firearm legislation.

However, after Heller, Circuit Courts of Appeals began employing an intermediate scrutiny standard of review, a different type of analysis. In 2022, the Supreme Court heard NY State Rifle and Pistol Ass’n v. Bruen, which reestablished the Heller test and its focus on the Nation’s historical traditions of firearm legislation. In 2024, the Court heard United States v. Rahimi, which applied the Bruen test for the first time. The majority opinion, penned by Chief Justice Roberts, focused on the historical tradition of preventing those who were deemed to be “dangerous” or an imminent threat to others from possessing firearms. In Rahimi, the defendant had an active protective order against him by an ex-girlfriend. Since this fell within the type of dangerous conduct befitting a ban from gun ownership pursuant to our history and tradition, the statute was ruled constitutional. Of particular importance, Justice Roberts clarified that an exact historical replica is not required; instead, merely a “historical analogue” is needed for the law to survive.

This Note will argue that 18 U. S. C. § 922(g)(3), which makes it a criminal offense for a drug addict to possess a firearm, fails constitutional muster. By focusing on the drug use itself, the connection that use of the drug has with dangerous behavior, and the historical development of gun legislation itself, this Note will demonstrate that courts should find the statute wholly unconstitutional. This result would leave 18 U. S. C. § 922(g)(1) as the mechanism for disarming individuals convicted of a drug-related felony, after those individuals have received the due process afforded by a criminal conviction.

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